Madras High Court
Dr.N.Rajendran vs / on 24 August, 2018
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.08.2018
CORAM:
THE HON'BLE MR. JUSTICE R.SURESH KUMAR
W.P.No.39317 of 2005 and
and W.P.M.P.No.42130 of 2005
W.P.No.39328 of 2005
and W.P.M.P.No.42138 of 2005
1.Dr.N.Rajendran ... petitioner in W.P.No.39317 of 2005
2.V.Krishnakumar ...petitioner in W.P.No.39328 of 2005
/vs/
1.The Director of Collegiate Education,
College Road, Nungambakkam,
Chennai 600 006.
2.The Secretary,
Nehru Memorial College,
Puthnampatti 621 007,
Trichy District. ...Respondents in both writ petitions
Prayer for W.P.No. 39317 of 2005
This Writ petition filed under Article 226 of Constitution of India praying for
issuance of a Writ of Certiorarified Mandamus to call for the records relating to
the proceedings No.57631/F3/04 dated 13.08.2005 on the file of the Director of
Collegiate Education, Chennai, the first respondent herein and to quash the same
and consequently direct the first respondent to transfer the service and monetary
benefits for his service in the second respondent aided Nehru Memorial College to
Periyar University, Salem.
Prayer amended as per order dated 06.07.2018 by PDAJ in W.M.P.
No.11891 of 2018 in W.P.No.39317 of 2005.
http://www.judis.nic.in
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Prayer for W.P.No.39328 of 2005
This Writ petition filed under Article 226 of Constitution of India praying
for issuance of a Writ of Certiorarified Mandamus to call for the records relating to
the proceedings No.57631/F3/04 dated 13.08.2005 on the file of the Director of
Collegiate Education, Chennai, the first respondent herein and to quash the same
and consequently direct the first respondent to transfer the service and monetary
benefits for his service in the second respondent aided Nehru Memorial College to
Periyar University, Salem.
Prayer amended as per order dated 06.07.2018 by PDAJ in W.M.P.
No.10061 of 2018 in W.P.No.39328 of 2005.
For petitioner in both writ petitions :Mr.Mani Sundargopal
For Respondent in both writ petitions :Mr.D.Venkatachalam,
Addl. Gov. Pleader(Education)
COMMON ORDER
Writ Petition No. 39317 of 2005 The prayer sought for in this Writ petition is for issuance of a Writ of Certiorarified Mandamus to call for the records relating to the proceedings No.57631/F3/04 dated 13.08.2005 on the file of the Director of Collegiate Education, Chennai, the first respondent herein and to quash the same and consequently direct the first respondent to transfer the service and monetary benefits for his service in the second respondent aided Nehru Memorial College to Periyar University, Salem.
http://www.judis.nic.in 3 Prayer for W.P.No.39328 of 2005 The prayer sought for in this Writ petition is for issuance of a Writ of Certiorarified Mandamus to call for the records relating to the proceedings No.57631/F3/04 dated 13.08.2005 on the file of the Director of Collegiate Education, Chennai, the first respondent herein and to quash the same and consequently direct the first respondent to transfer the service and monetary benefits for his service in the second respondent aided Nehru Memorial College to Periyar University, Salem.
2. Since the facts in both the writ petitions are similar, and the relief sought for in both the cases are one and the same, and the parties are also similarly placed, these two Writ Petitions, with the consent of both sides, were taken up for joint hearing and are being disposed by this common order.
3. For the purpose of disposal of these Writ Petitions, it is enough to notice the facts pertaining to the Writ Petition in W.P.No.39317 of 2005. The petitioner was appointed as Assistant Professor of Commerce, at the second respondent college in the year 1984. The second respondent college is a private recognized aided college Governed by the provisions of Tamil Nadu Private Colleges (Regulation) Act, 1976 and the rules made thereunder.
4. This petitioner was promoted in the year 2004 as Reader, as per the http://www.judis.nic.in regulations of the U.G.C and he was awarded a UGC Major Research Project. 4
He attended three international conferences and presented papers and also attended 19 national level seminars and presented papers. He had made 13 publications in the national level journal.
5. While so, the Periyar University, Salem, which is a State University, established under Periyar University Act, issued an advertisement in advertisement No.20/2004 dated 28.07.2004 in leading dailies, inviting applications to fill up the post of Reader in the department of commerce.
6. Since, the petitioner was having the necessary qualifications for consideration of the appointment for the said post at the said University, he had sent an application to the University through proper channel that is the second respondent.
7. The University after having considered the application of the petitioner, as well as the other similarly placed persons, conducted an interview and ultimately the petitioner was selected for appointment to the post of Reader at the University. Accordingly, the University issued an appointment order on 21.11.2004 as Reader and 15 days joining time was given to the petitioner to join in the said post.
8. Since the petitioner had already been working at the second respondent http://www.judis.nic.in college and he had completed twenty years of unblemished service 5 therein, and he opted to be a reader for better prospects at the said university and he was selected and appointed to the post of Reader and he was given only 15 days time to join in the said post, the petitioner sought for lien from the second respondent college to join at the University, initially for one year and for subsequent extension of one year, as the petitioner had to undergo two years probationary period at the University, and thereafter on successful completion of the probation, he would be permanently absorbed as a university teacher in the said University.
9. Considering the said appointment order given by the University, as well as the request made by the petitioner, the second respondent college by order dated 30.11.2004, has given the following relieving order with lien.
Relieving Order Dr.N.Rajendran, M.Com., Ph.D Reader in Commerce of this college is relieved from his duties on the afternoon of 30th November 2004 on lien on foreign service for a period of one year enabling him to join duty in Periyar University, Salem as Reader in Commerce.
10. On the strength of the said relieving order, pursuant to the appointment order of the 2nd respondent University, he joined in the university service as Reader and had been working as their teaching staff. In the meanwhile, the second respondent college forwarded the proposal for having relieved the petitioner to join in the University service, to the first respondent for http://www.judis.nic.in grant of approval with lien.
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11. On receipt of such proposal from the second respondent college, the first respondent vide his communication dated 27.01.2005, required the second respondent to explain, under what provision such a relieving order with a lien has been given to the petitioner. The said communication of the first respondent reads thus:
** ghh;itapy; fhQqk; j';fsJ fojj;jy; j';fs;
fy;Y}hpapy; ,aw;gpay; ngUiuahsh; Kidth;
tp/fpUc;&zFkh; kw;Wk; tzpftpay; ngUiuahsh;
Kidth; vd;/,uhn$e;jpud; Mfpnahiu nryk; bghpahh;
gy;fiyf; fHfj;jpw;F kPs;chpik milg;gilapy;
Xuhz;L gzpg[hpa 30/11/2004 gpw;gfy; tpLtpf;fg;gl;L
j';fshy; Miz tH';fg;gl;Ls;sJ/ cjtp bgWk;
fy;Y}hp Mfphpah;fs; kPs; chpik mog;gilapy; ntW
epWtd';fspy; gzpg[hpa bry;tjw;F murpd; mDkjp
bgwg;gl ntz;Lk; vd;w epiyapy;. ,t;tpU
Mrphpah;fisa[k; kPs; chpik mog;gilapy; nryk;.
bghpahh; gy;fiyf; fHfj;jpy; gzpg[hpa fy;Y}hp
brayuhy; ve;j tpjpfs; mog;gilapy;
tpLtpf;fg;gl;ldh; vd;gjw;fhd tpsf;fj;jpid
mspf;FkhW nfl;Lf;bfhs;fpnwd;/**
12. In response to the said clarifications sought for by the first respondent, the second respondent college vide their reply dated 18.03.2005 has given the following reply.
** jdpahh; fy;Y}hpfspy; gzpahw;Wnthhpd; gzp
bjhh;ghd mk;r';fs; (service condition) midj;Jk;
fy;Y}hpfs; FGtpd; mjpfhuj;jpw;F cl;gl;lit vd
nkw;go rl;lj;jpd; gphpt[ 14 TWfpd;wJ/
nkw;fz;l Mrphpah;fs; neU epidt[f;
http://www.judis.nic.in fy;Y}hpapypUe;J (jdpahh;f; fy;Y}hp) tpLtpf;fg;gl;L
7
jkpH;ehL murhy; epWtg;gl;l gy;fiyf;fHfj;jpy;
gzpahw;Wfpwhh;fs; vd;gija[k; ,af;Feh; mth;fspd;
ftdj;jpw;Ff; bfhz;LtUfpnwd;/ nkw;fz;l Mrphpah;fs;
neU epidt[f; fy;Y}hpapypUe;J tpLtpf;fg;gl;ljhy;
jkpHf muRf;F ve;j tifapYk; epjpr;Rik ,y;iy/
nkYk; murpdhy; epWtg;gl;l gy;fiyf;fHfj;jpy; mth;fs; gzpahw;WtJ jkpHf muRf;F ed;ik jUtjhFk;/nkYk;.
nkw;fz;l Mrphpah;fs; gzpapypUe;J tpLtpf;fg;gl;l jhy;. fhypahd gzpapl';fSf;F jw;fhypfkhf Mrphpah;fis mkh;j;jp mth;fSf;F eph;thfk; jd; bghWg;gpy; Cjpak;
tH';fp tUfpwJ/ ,J nkw;fz;l Mrphpah;fspd; eyd;
fUjp eph;thfk; nkw;bfhz;l eltof;ifahFk; vd;gij
,af;Feh; mth;fSf;F md;g[ld; bjhptpj;Jf;bfhs;fpnwd;/ m';fPfhpf;fg;gl;l gzpaplj;jpy; gzpg[hpa[k; Mrphpah; xUth; gzpapypUe;J tpLtpf;fg;gl;L mtuJ gzpaplj;jpy; ntW xU Mrphpaiu epakpj;jhy;. mtUf;F Cjpa khd;ak;
tH';f ntz;o ,Ug;gjhYk;. Cjpa khd;ak; tH';fg;gl;l Mrphpah; xUtUf;F Cjpa khd;k; nfhug;gltpy;iyahdhy;.
,af;Feh; mth;fSf;F vGk; ,ay;ghd Iaj;ijg;
nghf;ft[k;. nkw;fz;l Mrphpah;fSf;F Cjpa khd;ak;
nfhug;glkhl;lhJ vd;gijj; bjspt[gLj;jt[k;. nkw;fz;l
Mrphpah;fs; gzpapypUe;J tpLtpf;fg;gl;likia chpa
Mtz';fSld; ,af;Feh; mth;fSf;F cldoahfj;
bjhptpf;f ntz;oa flik eph;thfj;jpw;F cz;L/
nkw;fz;l flikia eph;thfk; rhpahfr; bra;jpUf;fpwJ
vd;gija[k; ,af;Feh; mth;fspd; ftdj;jpw;Ff; bfhz;L
tUfpnwd;/
jdpahh;f; fy;Y}hpapy; gzpahw;Wk; Mrphpah; xUth;
ntW epWtdj;jpy; gzpahw;w njh;t[ bra;ag;gl;l epiyapy; me;epWtdj;jpy; (murhy; epWtg;gl;l gy;fiyf;fHfk;) gzpahw;w VJthfj; jd;idg; gzpapypUe;J tpLtpf;ff;
nfhhpdhy; mtiu murpd; mDkjp bgw;Wj;jhd;
gzpapypUe;J tpLtpf;f ntz;Lk; vd;W 1976k; Mz;od;
http://www.judis.nic.in
jdpahh;f; fy;Y}hpfs; xU';fhw;Wr; rl;lk; kw;Wk; mjd;
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bghUl;L ,aw;wg;gl;l tpjpfs; Mfpatw;wpy; vt;tplj;jpYk;
Twg;gltpy;iy vd;gija[k; ,af;Feh; mth;fSf;F
md;g[ld; bjhptpj;Jf; bfhs;fpnwd;/
1976Mk; Mz;od; jdpahh;f; fy;Y}hpfs; xG';fhw;Wr;
rl;lk; gphpt[ 14?,d; mog;gilapy;jhd; nkw;go Mrphpah;fs; tpLtpf;fg;gl;ldh; vd;gija[k; ,af;Fehpd; nkyhd ftdj;jpw;Ff; bfhz;L tUfpnwd;/ nkw;fz;l gphpt[ 14?,d;go. rpy jdpahh; fy;Y}hpfs;
j';fs; fy;Y}hp Mrphpah;fis gy;fiyf;fHfj;jpy;
gzpahw;Wtjw;F cldoahfg; gzpapypUe;J tpLtpj;Js;sikf;F Kd; cjhuz';fs; cs;sd vd;gija[k;
j';fs; ftdj;jpw;Ff; bfhz;L tUfpnwd;/
nkw;fz;l Mrphpah;fs; kPs chpik mog;gilapy;
nryk; bghpahh; gy;fiyf;fHfj;jpy; rpwg;ghfg;
gzpahw;Wtjw;F chpa eltof;iffis nkw;bfhs;Sk;go
,af;Feh; mth;fis md;g[ld; nfl;Lf;bfhs;fpnwd; **
13. Not satisfying with the said reply given by the second respondent, the first respondent once again by a letter dated 23.05.2005, has sent the following communication.
** ghh;it (1)y; fhQqk; kz;ly fy;Y}hpf; fy;tp ,iz ,af;FeuJ fojj;jpy;. g[j;jdk;gl;o neU epidt[f;
fy;Y}hpapypUe;J 30/11/2004 gpw;gfy;. nryk; bghhpahh; gy;fiyf;fHfj;jpy; kPs; chpikapy; gzpay; nru VJtha;
fy;Y}hp eph;thfk; ,uz;L tphpt[iuahsh;fis
jd;dpr;irahf tpLtpf;fg;gl;ljhft[k;. ,t;tU
tphpt[iuahsh;fspy; jpU/ uhn$e;jpud; vd;ghh; gz;oif
Kd;gzk; U:/900-?k;. thfd Kd;gzk; U:/1.01.200-?k;
muRf;F brYj;j ntz;oa epiyapy; cs;sJ vd jpUr;rp
kz;ly fy;Y}hpf; fy;tp ,iz ,af;Feh; bjhptpj;Js;shh;/ muRf;Fhpa epYitj; bjhiffs; tN:ypf;fhkYk; murpd;
Kd; mDkjp bgwhkYk;. ,Utiu gzpapypUe;J
http://www.judis.nic.in
tpLtpj;jJ rhpay;y/ ,jw;F fy;Y}hpr; brayh; Twpa[s;s
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fhuz';fs; Vw;fj;jf;fj;yy
; /
vdnt. nkw;fhd; ,U tphpt[iuahsh;fspd; muRf;F
brYj;j ntz;oa epYitj;bjhifapid tN:ypj;J muR
fzf;fpy; brYj;jp mjd; tptuj;ij cld; bjhptpf;FkhW fy;Y}hpr; brayh; mwpt[Wj;jg;gLfpnwd;/**
14. Subsequently, by an order dated 13.08.2005, the first respondent had rejected the proposals sent by the second respondent college, seeking approval with lien for the relieving order given to the petitioner by the second respondent and the said rejection order having the following content:
** ghh;itapy; fhQqk; foj';fspy; g[j;jdhk;gl;o neU epidt[f; fy;Y}hpapd; ,aw;gpay; ,iz nguhrphpah; jpU/tp/fpUc&;zFkhh; kw;Wk; tapftpay; ,izg; nguhrphpah; jpU/v!;/uhn$e;jpud; Mfpnahh; nryk;. bghpahh; gy;fiyf; fHfj;jpy; kPs; chpikapay; gzp g[hpa VJtha; mf;fy;Y}hp eph;thfj;jhy; 30/11/2004 gpw;gfy; gzpapypUe;J tpLtpf;fg;gl;Ls;shh;/ kPs; chpik mog;gilapy; bry;y murpd; Kd;
mDkjp bgwntz;Lk; vd;w eilKiw ,Ue;j nghjpYk;
fy;Y}hp eph;thfk; jd;dpr;irahf ,U nguhrphpah;fisa[k;
tpLtpj;Js;sJ/
vdnt. murpd; Kd; mDkjpa[k; ve;jtpjkhd
tpLg;g[-kPs; chpik (Lien) jd;tpUg;g Xa;t[ (V.R.)/
gzpj;Jwg;g[ (Resignation) vd;w vt;tpj Miza[kpd;wp
fy;Y}hpr; brayh; jd;dpr;irahf bray;gl;Ls;sjhy;.
,th;fsJ nfhhpf;ifia Vw;f ,ayhJ vd;W bjhptpj;Jf; bfhs;fpnwd;/
15. Aggrieved over the said order of rejection made by the first respondent, the petitioner has filed this writ petition with aforesaid prayer. http://www.judis.nic.in 10
16. Similarly, in W.P.No.39328 of 2005, the petitioner therein was appointed as assistant professor for the subject physics at the second respondent in the year 1983, and he also applied to the Periyar University for the post of Reader in the year 2004 and he was also selected and appointment order was given, like other petitioner, he also got relieving order and joined in Periyar University. In the same rejection order passed by the first respondent, the request of the petitioner sent through the second respondent college, for approval with a lien was rejected. Therefore, the very same impugned order, in so far as this petitioner is concerned, also has been under challenge.
17. Therefore, both the writ petitioners have challenged the impugned order passed by the second respondent dated 13.08.2005, as it was the common rejection order made in both the petitions, rejecting the plea of approval with the lien.
18. Mr.Mani Sundargopal , Learned counsel appearing for the petitioners has made the submission that, these petitioners were the permanent teachers at the second respondent college which is a recognized, aided private college, governed by the provisions of the Tamil Nadu Private Colleges regulations Act.
19. In so far as the service of the petitioners rendered at the second respondent http://www.judis.nic.in college, the second respondent college management is empowered to 11 undertake and carry out certain functions for the general administration of the private colleges on appointment of teachers and other persons and regulate the conditions of the service of teachers, including disciplinary action. When such a wide power was given in the Act, which is the Governing legislation of private colleges in the State, empowering the college management, that is called college committee, to undertake various functions over the administration including the service, issues of the teaching and non-teaching staffs, certainly, the college management is empowered to give relieving order to the petitioner with lien.
20. The learned counsel appearing for the petitioners would further submit that, there is no prohibition for these petitioners to go out from the second respondent college and join in the university services at Periyar University for better prospects. Once they join in the university services, in which they have to undergo the probation period, and once they successfully complete their probation, they would be permanently absorbed at the University. However, before they complete the probation, since they would not be permanently absorbed in the university, the petitioners must have the lien with the erstwhile employer, i.e with the second respondent college management and without such lien, a permanent teacher, who had rendered service for more than twenty years, cannot be sent out.
21. The learned counsel appearing for the petitioners would further submit http://www.judis.nic.in that, only in that background, the relieving order was given by the second 12 respondent with lien, permitting the petitionerss to join in the university services. Since only fifteen days time had been given to the petitioners to join the university service, within which the permission to be obtained from the first respondent cannot be made possible, the second respondent management by exercising their power under section 14 of the Tamil Nadu Private Colleges (Regulation) Act, 1976 (herein after referred to as the Act) had granted relieving order with lien. Simultaneously, the said order had been communicated to the first respondent for approval/ratification, and in this regard, even though the clarification sought for by the first respondent had been clarified/replied, nevertheless, the first respondent passed the impugned order, rejecting the said plea made by the second respondent college on behalf of the petitioners to give approval with lien to these petitioners. Therefore, the same cannot be sustained in the eye of law.
22. The learned counsel appearing for the petitioners would further argue that, in so far as the purpose of seeking such approval with lien, from the first respondent is concerned, since the petitioners had been working at the second respondent collage, as permanent teachers for more than twenty years, they would become automatically entitled to get full service benefits, including pension. However, since the petitioners joined in the university service, the rest of the service, which they would render at university, will be calculated by the university for pensionary benefits and both the services, the petitioners rendered at the http://www.judis.nic.in private college as well as the university services, would be taken together 13 and ultimately, based on such combined service period, both the petitioners would be given retirement and pensionary benefits at the time of their superannuation. For the said purpose, the formal order of approval is very much required and that is the reason why such approval was sought for by the petitioners through the 2nd respondent college, which have been refused without any plausible reason.
23. The learned counsel for the petitioners would further add that, by giving such an approval for the petitioners with lien, the Government is not going to loose anything through their exchequer and no extra financial commitment is going to be attached with the State Government. The reason being that, till the date they worked in the second respondent college, salary have already been paid and only the service period will be calculated for the purpose of pensionary benefits.
24. In so far as the service to be rendered by these petitioners in the University is concerned, that period would be taken care of by the University for pensionary benefits. Therefore, there would be no extra expenses to be incurred by the State Government, because of the approval to be given by the first respondent to these petitioners with lien.
25. The learned counsel appearing for the petitioners in this regard would http://www.judis.nic.in rely upon the G.O. M.S.No.187/Finance (Education) Department dated 14 13.04.06 and has pointed out that, in the said Government Order, the procedure for taking care of the pensionary benefits, for those who deputed or went for foreign service from the aided colleges/Government colleges to the universities and vice versa, has been provided. Accordingly , such services are to be considered as a continuing service and once a teacher goes to the university from aided or government college, the entire pentionery benefits would be taken care by the university and vice versa.
26. However, Mr.D.Venkatachalam, learned Additional Government Pleader (Education) repudiated that, since large number of people were moving only from aided and Government colleges to University and only very few are going from university, the university concerned have to pay huge sums of money towards payment of pensionary benefits and because of which, the universities would be in financial crisis and in order to alleviate the universities from such crisis and to bail out them, the Government thought it fit to issue this G.O.M.S.187/Finance (Education) Department dated 13.04.2006.
27. The learned counsel appearing for the petitioners in this regard would rely upon the following import of the G.O.Ms.No.187, Finance (Pension) Department dated 13.04.2006, which reads thus:
The Government have therefore decided to modify the orders issued in the Government order first and second read above. Accordingly, the Government issue http://www.judis.nic.in the following revised orders:-15
1. The pensionary liabilities for the period of services rendered by Teachers in Government/Aided Colleges who take up appointment in Universities shall be borne by the Government and paid to the Universities by the Government at the time of retirement of these teachers.
2. Similarly pensionary liabilities for the period of services rendered by the teachers in Universities who take up appointment in the Government/Aided Colleges shall be borne by the University concerned and shall be paid by the Universities to the Government at the time of retirement of these teachers.
28. The learned counsel appearing for the petitioners would also bring to the notice of this Court about the ratification if not approval, given to similarly placed teachers in certain cases, by issuance of Government order in this regard by giving relaxation to the relevant Government order, under which the requirement for approval from the Government/ the first respondent for grant of lien has to be satisfied.
29. By relying upon these proceedings as well as the Government order, the Learned counsel appearing for the petitioners would contend that, the said permission sought for by the petitioners through the second respondent, is only a formal permission for the aforesaid purpose. The reasoning given in the impugned order by the first respondent for refusal of such permission is that, the said permission should have been obtained, as a prior permission, before relieving http://www.judis.nic.in 16 order issued by the second respondent and before the petitioners joining in the university services. This apart, no other reason has been adduced by the first respondent in the impugned order. Therefore, it discloses that no other plausible or acceptable reason is available for the first respondent to reject the claim of petitioners for approval with lien. When that being so, the impugned order cannot be sustained and therefore, the said orders have to be interfered with and have to be quashed.
30. Per contra, Mr.D.Venkatachalam, Learned Additional Government Pleader, appearing for the first respondent, would rely upon the following averments made in the counter affidavit of the first respondent.
''3. It is submitted that the petitioner should have obtained orders of Government to join as Professor of Physics at Periyar University on lien basis, but, the petitioner has not obtained necessary orders of the Government, instead he has simply got relieving orders from the Nehru Memorial College, Puthnampatti and joined in the Periyar University Salem on 01.012.2004. As per the rules in force, the Government only is the competent authority for issuing orders in respect of college for deputation of lecturers to serve in the University on lien basis(maximum upto 3 years).
4. It is submitted that the Government has issued orders in G.O.No.1146, Education Department, dated 09.08.1990 prescribing the procedure for deputation of aided college teachers to Universities on lien basis. As per http://www.judis.nic.in the orders of the Government, teachers aspiring for 17 University Service should obtain the permission of the Government before joining in the University on lien basis. But, the petitioner has not obtained any permission from the Government and has joined the University after getting relieving orders from the college.
5. It is submitted that in the proceedings issued by the Registrar dated 21.11.2004, it has been specifically stated that he should make his own arrangement to obtain necessary orders from the present organization/respondent Government and also take necessary steps for renewal of the lien well in advance before the expiry of lien granted to him.
6. It is submitted that the Director of Collegiate Education in his Letter dated 13.08.2005, has rejected the proposal of the college for ratification of relief of the petitioner to Periyar University, for the reason that the college Secretary has not obtained prior permission from the Government.''
31. The Learned Additional Government Pleader by relying upon the said averments made by the first respondent, would submit that, as per the Government order in G.O.No.1146, Education Department dated 09.08.1990, it become mandatory that the Government has to give lien for the first year for the teachers, who move from the private colleges to foreign or university services and for the extension of second and third year lien for completion of their probation in the foreign services, the orders have to be passed by the Director of Collegiate Education, that is the first respondent.
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32. When such a mandate has been issued by the Government through G.O.No.1146, Education Department dated 09.08.1990, whether in violation of that Government order, petitioners can go and join in the university services by taking into account only the relieving order issued by the second respondent college, without getting approval from the Government i.e., first respondent, is the issue before this court.
33. The learned Additional Government Pleader, appearing for the respondents further submits that, since the request of the petitioners made through the second respondent, for approval has been rejected through the impugned order dated 13.08.2005, as the petitioners in violation of the procedure to be followed, for getting the approval from the Government with lien, as contemplated in G.O.No.1146 Education Department dated 09.08.1990, joined in the university service, they are not entitled to get the said approval and therefore, the reasoning given by the first respondent in the impugned order for such rejection are not only justifiable but also sustainable and in that in view of the same, the impugned order requires no interference from this Court.
34. I have considered the said submissions made by the learned counsel appearing for the petitioners as well as the Learned Additional Government Pleader appearing for the first respondent. http://www.judis.nic.in 19
35. The undisputed facts in both these writ petitions are that, both the writ petitioners joined as assistant professor in the second respondent college in the year 1983 and 1994 and they had rendered service as Assistant professors and subsequently as readers for more than twenty years.
36. The second respondent is the recognized aided private college. Therefore, the salary and perquisites for the teachers working in the second respondent would be borne out from the aid of the government. Since the service of the petitioners as assistant professors in the second respondent college is a regularized service, these petitioners are entitled to get all service benefits, including pensionary benefits at the time of their superannuation.
37. After having rendered twenty years of service, since they are having the necessary qualifications, when suitable candidates were called for by the Periyar University for appointment to the post of Reader, the petitioners had made applications through the proper channel, that is through the second respondent. On consideration of the applications and after having conducted the interview, the university selected these two petitioners for appointment as Reader in the respective subjects that is reader in commerce and reader in physics.
38. In the appointment order, the university had directed the petitioners to join in service within 15 days of time. Therefore, the petitioners, who http://www.judis.nic.in had been in the position to join in the university service, applied for 20 relieving order with lien from second respondent college.
39. The second respondent having considered these aspects had granted a permission with lien on 30.11.2004 to both the writ petitioners and they joined in the university service.
40. Simultaneously, the 2nd respondent forwarded the proposal for seeking approval from the first respondent for grant of such relieving order with lien to the petitioners. Initially, the first respondent by a communication dated 27.01.2005, sought for a clarification from the second respondent that on what provision, the relieving order was given. In order to reply the same and to clarify, the 2nd respondent college, by a detailed reply dated 18.3.2005, had clarified the position stating that these petitioners since were working as permanent teachers at the second respondent college, and their service being dealt with under the Act as well as the Rule made thereunder, only by the college management, relieving order can be given and accordingly since they wanted to go for university service, for which they are eligible and also they have been selected and only 15 days time was given for joining in the university service, the college management by exercising their powers given under section 14 of the Act, was giving the relieving order with lien.
41. After receipt of the reply, first respondent had sent another communication http://www.judis.nic.in dated 23.05.2005, directing the second respondent college 21 management to recover a sum of Rs.900/- and a sum of Rs.1,01,200/- towards festival advance and loan for purchase of vehicle obtained by one of the writ petitioners and credit the same in the Government account.
42. When that was complied with by the college management and communicated the same to the first respondent by the communication of the second respondent dated 27.06.2005 stating that the said amount had been recovered and credited along with challan, subsequently by order dated 13/08/2005, the first respondent, by the impugned order, rejected the request made by the second respondent college, for approval with the lien.
43. As has been rightly pointed out by the learned counsel appearing for the petitioners, a perusal of the impugned order does not disclose any reason, except to state that such approval should have been obtained before they were relieved from the second respondent college and since the same had not been obtained, their request for approval cannot be granted.
44. In support of the said impugned order, the learned Additional Government Pleader made submissions that, when the procedure has been contemplated under G.O.No.1146 dated 09.08.1990, such an approval should have been obtained by the petitioners before they got relieved. Once such an approval is rejected, there is no scope for giving any ratification for such relievement with lien http://www.judis.nic.in by the second respondent college on its own. 22
45. In order to meet this argument, the learned counsel appearing for the petitioners submits that, the approval contemplated under the aforesaid G.O. either from the Government or from the Director of Collegiate Education is only for the purpose of regulating the pensionary benefits to be given to the college teachers, who opted to go for foreign service or university service on voluntary basis. If such an approval is not given by the competent authority, that is the Government or the Director, then, it may not be possible for the Accountant General to calculate and merge the service rendered by the teachers in the aided collage as well as the university for the purpose of benefit of pension and other retirement benefits. In order to make such combined service for the pensionary benefits, the Accountant General will take into account the order, namely the order of lien, passed by the Director in this regard.
46. Therefore, the purpose of giving such approval is only in support of benefits to be given to the teacher, who rendered service for a long time in aided college, before he / she moves into other services, including university services.
47. Merely because such an approval was not given or could not be obtained, within a shortest possible period, as these petitioners were given only 15 days time to join in the university service, such benefits accrued to both the petitioners, for their long service rendered by them in that private college, cannot be defeated.
http://www.judis.nic.in 23
48. In this case, both the petitioners admittedly have rendered twenty years of service and more at the second respondent college. Based on such service, these petitioners are entitled to get the full pension, once they get superannuation, at the end of the service. When that being so, by making the rejection order, the first respondent is trying to deny the lawful claim of these writ petitioners for their pensionary benefits for which, they are otherwise entitled to, as they have admittedly rendered twenty years long service in the aided college. In this regard, this Court is of the view that, the purpose of the G.O.No.1146 Education Department dated 09.08.1990 is not to defeat the lawful claim of qualified services rendered by the teachers in aided colleges, before they moved out towards other service, including university services.
49. If we look at the issue in hand from this angle, it can be easily construed that, if at all the Government or the Director concerned have not given approval, or the teachers could not get such approval, before they are joining in the university services, such an approval can very well be given to the teachers by way of ratification.
50. In fact, in order to strengthen this view, the learned counsel appearing for the petitioners already relied upon some orders passed by the Government, giving such ratification relaxing the conditions imposed under G.O.No.1146 Education Department dated 09.08.1990. http://www.judis.nic.in 24
51. One such Government order is G.O (2D) No.36, Higher Education (E2) Department dated 16.08.2012, where a similarly placed person, who had gone for university service without getting an approval, who, subsequently been given approval by way of ratification by the Government and the relevant portion of the G.O. reads thus:
nkny K:d;wpy; gof;fg;gl;l fojj;jpy;. Ke;ija
fy;Y}hpapypUe;J gzp tpLtpg;gjw;F murhiz
bgwg;gl ntz;Lk; vd;w eilKiw ,Ug;gjhf
gy;fiyf; fHfj;jpd; ftdj;jpw;F
bfhz;Ltug;gltpy;iy vd;Wk;. ,dptUk; fhy';fspy;
chpa eilKiwapid jtwhJ gpd;gw;wg;gLk; vd;Wk;
bghpahh; gy;fiyf;fHf gjpthsh; Fwpg;gpl;Ls;shh;/
nryk; bghpahh; gy;fiyf;fHf gzpapy;. mth;
epue;jukhf cl;gLj;jp. mg;gy;fiyf;fHf
bjhiyJ}uf; fy;tp ,af;Feuhf gzpgphpe;J
30/06/2011 md;W gzp Xa;t[ bgw;Wtpl;l epiyapy;.
,e;epfH;tpw;F jFe;j murhiz btspaplg;
glhjjhy;. ,j;jdpaUf;F Xa;t{jpag; gyd; bgw;W
tH';f ntz;oa[s;sjhy;. mth; Vw;fdnt gpd;ndw;g[
Mizfis tH';FkhW 27/03/2012 ehspl;l fojj;jpy;
fy;Y}hpf; fy;tp ,af;Feh; murpid
nfl;Lf;bfhz;Ls;shh;/
nkny gj;jpfs; xd;W kw;Wk; ,uz;oYs;s
fy;Y}hpf; fy;tp ,af;Fehpd; fUj;JU. murhy;
ftdKld; Ma;t[ bra;ag; gl;lJ/ 24/06/2005 md;W.
nryk; brsnl!;thp fy;Y}hp. Kd;dhs; Kjy;th;
(bghWg;g[). Kidth; $p/Fznrfud; vd;gtiu kPs;
chpik mog;gilapy; nryk;. bghpahh; gy;fiyf;fHfj;
jpy; bjhiyJ}u fy;tp ,af;Feuhf gzpahw;w
mDkjpaspj;j fy;Y}hp brayhshpd; braYf;F
gpd;ndw;g[ mDkjp tH';fpa[k;. Kidth;
http://www.judis.nic.in
$p/Fznrfud; vd;gtuJ kPs; chpikapid mth;
25
fy;Y}hpg; gzpapypUe;J tpLtpf;fg;gl;l ehspypUe;J
(mjhtJ 24/06/2005) Jz;oj;Jk;. muR
MizapLfpwJ/ nkYk;. murhiz (epiy) vz;/187.
epjp (Xa;t{jpak;) Jiw. ehs; 13/04/2006?d;go. mth;
cjtp bgWk; fy;Y}hpapy; gzpahw;wpa gzpf;fhy;ij
md;dhhpd; Xa;t{jpaj;jpw;F fzf;fpy; bfhs;s
gy;fiyf;fHfj;jpw;F khw;w fy;Y}hpf; fy;tp
,af;FeUf;F mDkjpa[k; tH';fp muR Miz
apLfpwJ/
52. Yet another order has also been quoted by the learned counsel for the petitioners in G.O.(2D) No.29, Higher Education (E2) Department dated 26.06.2012, wherein the following order has been passed by the Government.
nkny gj;jpfs; ,uz;L kw;Wk; K:d;wpy; cs;s
fy;Y}hpf; fy;tp ,af;Fehpd; fUj;JUtpid muR
ftdKld; Muha;ejJ/ tHf;F W.P.No.
20226/2010?,y; 9/11/2010y; tH';fg;gl;l jPh;g;ghiz ?
apid eilKiwgLj;j jpU;r;rp $khy; KfkJ
fy;Y}hp eph;thfk;. tpy';fpay; Jiw. njh;te
[ piy
tphpt[iuahsh;. Kidth; tp/tPuuhftd; vd;ghUf;F
mspj;J gzpePff
; k; bra;J Mizfis uj;J bra;J
jPh;khdk; epiwntw;wp. mtiu maw;gzpapy; bjhlu
mDkjpj;Js;s epiyapy;. ,jid xU rpwg;g[
epfH;thf fUjp. maw;gzpapy; murhy;
mDkjpf;fg;gl;l fhyj;jpw;Fk; nkyhf. md;dhh;
mDkjpapd;wp gzpahw;wpaij bghWj;jUsp.
maw;gzpf;fhyj;jpw;fhd Xa;t{jpak; kw;Wk; tpLg;g[
g';Fj; bjhifapid ,e;jpuhfhe;jp njrpa
jpwe;jbtsp gy;fiyf;fHfk;jhd; brYj;j ntz;Lk;
vd;w epge;jida[ld;. 1/7/70 Kjy; 3/3/92 tiu
jpUr;r $khy; KfkJ fy;Y}hpapy; gzpg[hpe;j
jpU/tp/tPuuhftd; vd;ghhpd; jFjpahd
http://www.judis.nic.in
gzpf;fhyj;jpw;fhd tpLg;g{jpak; kw;Wk; Xa;t{jpa
26
g';Fj; bjhifapid ,e;jpuhfhe;jp njrpa jpwe;j
btsp gy;fiyf;fHfj;jpw;F khw;wt[k; kw;Wk;
maw;gzpapy; gzpg[hpe;j fhyj;jpw;F ,e;jpuh fhe;jp
njrpa jpwe;jbtsp gy;fiyfHfj;jhy; brYj;jg;gl;l bjhifapid mg;gy;fiyf; fHfj;jpw;F khw;Wtjw;Fk; fy;Y}hpf; fy;tp ,af;FeUf;F mDkjp tH';fyhk; vd Kot[ bra;J. mt;thnw muR MizapLfpwJ/ If we look at the above quoted orders, where ratification had been given by the Government by relaxing the condition referred to above, the necessary approval sought for by the teachers concerned, if at all could not be given or could not be obtained before they get relieved from the private colleges, such an approval can be given by way of ratification either by the Government or by the Director. Even though such a ratification power is vested with the Government, on the basis of recommendations to be made by the Director, such relaxations are being made.
53. Here in the case in hand, the Director has not given any such ratification, after getting permission from the Government, nor he has requested the government to consider the request of the petitioner for ratification.
54. In this case, the petitioners have given reasons for not getting the approval, as only 15 days time were given for joining in the university service. Moreover, after completing one year probation, when they wanted extension of lien for another one year for completing the probation of two years at the University, http://www.judis.nic.in the 2nd respondent college, in fact, rejected the request of the 27 petitioners to extend the lien for two year by citing the reason that the first respondent has taken a stand that approval cannot be granted for the lien granted by the 2nd respondent for initial one year period.
55. Aggrieved by the said stand taken by the college also, the petitioners, when they moved these writ petitions, had also sought for an interim direction, directing the respondents to give extension of two year lien. After considering the request made by the petitioners, this court passed an order on 09.12.2005 , by giving following direction.
"Heard both sides. The learned Senior Counsel appearing for the petitioner submits that the impugned order is liable to be set aside on the grounds alleged in the writ petition and pending disposal of the same, the direction sought for may be granted to the petitioner. Mr.K.Surendranath, learned counsel appearing for the second respondent submits that he has received written instruction from the second respondent that they have no objection granting lien for a further period of one year as sought for by the petitioner.
Considering the facts and circumstances of the case and the submission made, more particularly the submission made by the second respondent, the petitioner is entitled to the direction sought for in this petition.
The direction petition is allowed as prayed for. http://www.judis.nic.in 28
56. Therefore, the fact remains that, the first year lien was given by the second respondent college on their own and the second year lien has also been given, pursuant to the direction issued by this Court. Following the two years lien granted to the petitioners, they have successfully completed the probation period and after that they have been absorbed as University teachers at the Periyar University. It is also informed by the learned counsel appearing for the petitioners that, the petitioner in W.P.No.39317 of 2005 was retired from service at the end of the academic year i.e on 31.05.2018 and the other petitioner in W.P.No.39328 of 2005 is still having the service till 2020. Therefore, in so far as the petitioner in W.P.No.39317 of 2005 is concerned, his pensionary benefits have to be calculated and to be given and in so far as the other petitioner i.e. in W.P.No.39328 of 2005 is concerned, the ratification order for his relievement with lien has to be given by the 2nd respondent college.
57. As I have discussed above, no acceptable or plausible reason has been given by the first respondent in the impugned order for rejecting the lien. Moreover, the purpose of granting approval with lien, as discussed above, is only for the benefit of the teachers, who can have the combined calculation of service rendered both at the private college as well as at the university for pensionary and other retirement benefits. When such benefits, which have been accrued on the teachers for the long service rendered by the them , the same cannot be denied by taking a stand by first respondent that since such approval was http://www.judis.nic.in not obtained, before they got relieved, such an approval cannot be 29 subsequently given by way of post-approval or ratification.
58. Assuming that such post approval or ratification can only be given by relaxation of the relevant procedure contemplated under the Government order, it could have very well relaxed by the first respondent before passing the rejection order rejecting the claim of the petitioner.
59. Since such type of action has already been taken in respect of similarly placed persons by the government, which have also been extracted herein above, where similarly placed teachers have been given approval by way of ratification for the relievement to join foreign/university services and when that being the position, the stand taken so far as by the first respondent through the impugned order, is something a hostile stand and also discriminating the petitioners with similarly placed persons, who have been given such ratification.
60. This move on the part of the first respondent as reflected in the impugned order, in the opinion of this court, cannot be accepted and therefore, it is liable to be interfere with.
61. For all these reasons and for the discussions made above, this Court is of the considered view that the impugned order cannot be sustained for the reason stated therein and accordingly, the impugned order is liable to be quashed.
http://www.judis.nic.in 30
62. In the result, [i] The impugned orders are quashed.
[ii] The first respondent is directed to forward the proposals sent by the second respondent for approval/ratification of the relievement made to the petitioners on 30.11.2004 to join in the Periyar University service, to the Government.
[iii] On receipt of such proposal from the first respondent, the Secretary to Government, Higher Education Department, shall consider the same and pass necessary orders giving such ratification to the petitioners by taking into account the orders passed for similarly placed persons.
[iv] Such exercise shall be undertaken on their part by the first respondent within a period of two months from the date of receipt of a copy of such proposal from the second respondent, then, the Secretary to Government, Higher Education Department, shall pass necessary orders for ratification within two months thereafter.
[v] It is made clear that once such ratification order is passed by the Government, then, the petitioner shall be entitled to claim the retirement and pensionary benefits on their superannuation by taking into account the services rendered by them at the second respondent college as well as at the Periyar University. Since the petitioner in W.P.No.39317 of 2005 has already retired, his pension shall be calculated and to be disbursed within a period of three months from http://www.judis.nic.in the date of the ratification order. In respect of other writ petitioner i.e. in 31 W.P.No.39328 of 2005, he shall be entitled to get such benefit on his superannuation.
63. With these directions, both the Writ petitions are allowed to the extend indicated above. No costs. M.P's are closed.
24.08.2018 speaking/non speaking order Index:yes/no internet: yes/no mst To
1.The Director of Collegiate Education, College Road, Nungambakkam, Chennai 600 006.
2.The Secretary, Nehru Memorial College, Puthnampatti 621 007, Trichy District.
3. The Secretary to Government, Higher Education Department, Chennai-9.
http://www.judis.nic.in 32 R.SURESH KUMAR, J.
mst W.P.No.39317 of 2005 and W.P.No.39328 of 2005 http://www.judis.nic.in 24.08.2018